Court rules custody battle a U.S. issue

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This article was published 31/05/2012 (4351 days ago), so information in it may no longer be current.

TORONTO — A child-custody dispute involving a new mother who moved to California when she was seven months pregnant should be decided in the U.S. state rather than in Ontario, the province’s top court ruled Thursday in a case closely watched by women’s-rights activists.

The Appeal Court rejected the findings of a lower court judge, who had found the circumstances of the move “analogous to abduction” and decided Ontario courts should have jurisdiction even though the child had never lived in Canada.

In overturning the earlier ruling, the appellate judges found Ontario Superior Court Justice Frances Kiteley had made several errors, including her finding the baby was in need of the court’s protection.

“The circumstances of this case… simply do not give rise to any protection concern,” the Appeal Court ruling states.

“California’s laws and procedures are similar to those of Ontario, parents have equal rights, and the best interests of the child is the principle upon which judgments pertaining to the child are made.”

According to court documents, Mojdeh Razi, 36, an interior designer, was seven months pregnant when she left Toronto for California last November saying she was going to visit family.

After baby Audrey was born in mid-January, the father, waste-management entrepreneur Patrick Dovigi, 32, started custody and access proceedings in Ontario Superior Court.

Dovigi, a one-time NHL-drafted goalie, argued Ontario should have jurisdiction, saying he always believed Razi would be returning and Audrey would be parented in the province.

In her decision, Kiteley said it appeared Razi only decided to stay in California after Audrey’s birth and was “probably” in response to Dovigi’s court action in Ontario.

“I do not agree that the mobility rights of a pregnant mother automatically determine jurisdiction over the child,” Kiteley said.

“To decline to take jurisdiction in these circumstances would be to encourage a pregnant mother to depart from the original jurisdiction in circumstances that are arguably analogous to abduction.”

The Women’s Legal Education and Action Fund, which sought unsuccessfully to intervene in the appeal, said the case could have had “important repercussions” for the equality, autonomy and mobility rights of pregnant women.

For one thing, the fund said, Kiteley’s ruling — if it had stood — would effectively have prevented a pregnant woman from moving without the consent of the father — an infringement on her rights.

— The Canadian Press